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RealClear Energy Op-Ed: SCOTUS Should Review Climate Cases to Stop the Gaming of an Outdated Legal Doctrine

By Phil Goldberg
April 20, 2023

The U.S. Supreme Court is scheduled to decide, as early as April 21, whether to review lawsuits that are trying to remake America’s climate policy through litigation. The precise legal question is procedural—whether lawsuits seeking to make energy producers liable for climate change should be heard in federal or state courts—but the litigation is stirring a national debate. Presidential administrations, states, and federal courts are deeply divided on the law and implications of the litigation, with one judge urging the Supreme Court to resolve these “confounding” issues. 

So far, about two dozen climate lawsuits against energy producers have been filed around the country. This litigation is really political in nature, born out of frustration among some groups that their climate policies were not being adopted in Congress or the administrations. There is no doubt that climate change is a critical issue and must be addressed. However, by going to the courts to impose their policies—here to “raise the price” of oil and gas on American consumers—they are trying to bypass the checks and balances of the legislative and regulatory processes.

Their strategy depends on circumventing the federal judiciary. That’s because when a previous climate case went to the Supreme Court in 2011, the Court unanimously held that federal claims over climate change were displaced by the Clean Air Act. It also explained that climate change raises federal policy matters for regulators, not liability issues for courts. Following this precedent, the U.S. Court of Appeals in 2021 threw out New York City’s climate lawsuit—which was nearly identical to the ones in the Supreme Court today. 

Read the full column here